SURESH VITHAL BALLAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE criminal appeals are directed against the judgment and order dated-7-6-1999 passed by the Sessions Judge, Akola in Sessions Trial No. 183/1998 whereby appellants are convicted for the offence punishable under Section302 read with Section34 of Indian Penal Code and sentenced to undergo imprisonment for life and pay fine of Rs. 2000/- each, in default to undergo further rigorous imprisonment for three months. Both these appeals are heard together and disposed of by this common judgment.

(2.) SHRI. Deshpande, learned Counsel for the appellant/accused Sanjay, states that case of the prosecution is primarily based on the evidence of dying declaration given by deceased Sheikh Hussain and recorded by PW2 Deoman (Naib Tahsildar ). It is contended that dying declaration is not free from suspicion and is a result of tutoring particularly in the light of evidence of PW1 Sheikh Iqbal (father of deceased Shiekh Hussain) wherein it has come that neighbours, who had gone to Hospital to see deceased Sheikh Hussain came out of Hospital room and told PW1 Sheikh Iqbal that they had instructed deceased Sheikh Hussain as to how he should make a statement. It is submitted that evidence of PW2 Deoman reveals that deceased was a Hindi speaking child. However, PW2 Deoman has recorded the dying declaration in Marathi which was not the language known to the deceased and, therefore, entire dying declaration recorded by PW2 Deoman is not free from suspicion.

(3.) IT is further contended by learned counsel Shri. Deshpande that a strange procedure is adopted by the trial Court by giving permission to the Public Prosecutor to cross-examine PW4 Shahanajbi half-way through the cross-examination, which was conducted by the Counsel for the defence. The trial Court has given complete go-by to the procedure contemplated in law in this regard. IT is submitted that prosecution no doubt can seek permission from the Court to declare its witness hostile to the prosecution and is also entitled to seek permission to cross-examine the said witness. However, prosecution is entitled to do so while recording examination-in-chief of its witness and if such witness is not supporting the prosecution case disclosed by him in his statement before the Police. Once examination-in-chief is over and cross-examination is commenced, Court is not empowered to grant such permission sought by the prosecution for declaring its witness hostile. The authenticity of the ocular testimony of the prosecution witness is required to be considered on the basis of cross-examination of such witness and defence can show that prosecution evidence is not true or authentic only on the basis of cross-examination of such witness. IT is, therefore, contended by the learned Counsel that once cross-examination is commenced and if prosecution witness deviates from the prosecution case disclosed by him in the statement before the Police, in such situation, the Court is not empowered to grant permission to the prosecution to cross-examine its own witness at that stage.